The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on June 20, 2002, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the worker's permanent partial impairment was correctly rated at 1% entitling him to a lump sum payment of $416.00.

Decision

That the worker's permanent partial impairment was correctly rated at 1% entitling him to a lump sum payment of $416.00.

Decision: Unanimous

Background

In 1994, the claimant submitted a claim for bilateral carpal tunnel syndrome which he related to his employment activities in the mining industry. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly. Medical information revealed that the claimant underwent two surgical procedures to decompress the median nerve on each wrist and a neuroloysis of the right median nerve.

On May 18, 2001, the claimant was examined by a WCB medical advisor for the purposes of establishing a permanent partial impairment (PPI) rating. Based on the examination findings and photographs that were taken, a 1% cosmetic impairment was recommended. On June 8, 2001, the claimant was informed by the WCB that he would be awarded a 1% PPI rating and that he was entitled to a lump sum payment of $416.000. On July 4, 2001, the claimant appealed the impairment award rating and the case was forwarded to the Review Office for consideration.

In a July 27, 2001 decision, Review Office confirmed that the claimant's PPI was correctly rated at 1% which entitled him to a lump sum payment of $416.00. Review Office noted that no rating was awarded for the loss of mobility in the joint as the examination on May 18, 2001 revealed no loss of range of motion in the claimant's elbows, wrists, hands or fingers. The 1% rating was provided for scarring caused by the operative procedures which were performed on the claimant's wrists. Based on the WCB's adopted rating schedules, Review Office concluded that the 1% PPI rating and the lump sum amount were both correctly assessed. The claimant appealed this decision and submitted additional medical reports dated November 28, 2001 and March 14, 2002 for consideration. On June 20, 2002 a non-oral file review was held at the Appeal Commission.

Reasons

Section 60(2) of the Workers Compensation Act of Manitoba (the Act), provides exclusive jurisdiction to the Workers Compensation Board (WCB) to determine the existence and degree of an impairment by reason of any injury arising out of and in the course of employment. According to Section 38(1) of the Act, the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment. Also, Section 4(9) allows the awarding of compensation in respect of impairment even though there has been no loss of earning capacity.

An injured worker's permanent impairment is appraised by the Medical Services Department of the WCB when it conducts either a medical examination of the worker or by its reviewing the treating physician's medical reports. Certain factors are taken into consideration: loss of the particular part of the body; loss of mobility in the joints; loss of function of any body organs; and cosmetic deformity of the body. As some forms of impairment do not allow for exact measurement, it becomes necessary for the medical advisor to make a subjective judgement as to the degree of impairment.

It is also important to note that because pain is not measurable, it does not become a component in the determination of whether a claimant qualifies for a permanent impairment award. For instance, a claimant who has complete and full range of motion of a shoulder following an injury to that shoulder would not be eligible for a permanent impairment award because of his continued experience of pain. Without a loss of range of motion or function of body part, the WCB will not authorize a permanent impairment award based on pain alone.

In the particular case at hand, a WCB Impairment Awards Medical Advisor examined the claimant on May 18th, 2001. He recorded in his examination notes the following assessment:

"There was a full range of motion of both wrists, fingers and thumbs. There was no obvious muscle wasting of the intrinsic muscles in either hand, and grip strength appeared to be full and equal."

Photographs of the claimant's surgical scarring were also taken at this time before a final rating was awarded. Eventually the claimant's recommended PPI rating was set at 1% for cosmetic purposes only as there was no other rateable finding.

WCB Impairment Award Medical Advisors employ certain criteria when making a determination of cosmetic impairment. Some of the factors considered when reviewing scarring include location of scar, form, multiple sites, texture, colour etc. Photographs are taken of the scarring and they are then reviewed independently by a medical advisor. A portfolio of photographs is also maintained at the WCB for purposes of comparing similarity and ensuring consistency.

The evidence on file confirms that an Impairment Award Medical Advisor reviewed photographs of the claimant's scarring. It was his opinion that a 1% cosmetic rating be given for scarring. While we did not have the benefit of being able to compare the claimant's photographs with folio photographs on file at the WCB, we find no reason to disturb the ultimate opinion reached by the medical advisor.

We have reviewed the claimant's impairment rating and find it to have been calculated in accordance with the legislation and the Permanent Impairment Rating Schedule approved by the Board of Directors. Therefore we find that the claimant's permanent partial impairment rating has been correctly rated at 1% and therefore entitling him to a lump sum payment of $416.00.

Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of July, 2002